Snowden debate pits legality against morality as regulators of conduct

Debates rarely change minds already firmly made up and this one between Chris Hedges and law scholar Geoffrey Stone is no exception

No 776 Posted by fw, June 13, 2013

“From a simple, straightforward, technical legal standpoint, there’s absolutely no question that Snowden violated the law. And from that standpoint, if he’s tried, he will be convicted, and he is in fact, from that perspective, a criminal. Whether one admires what he did is another question, but it doesn’t have anything to do with whether or not what he did was unlawful.” —Geoffrey Stone

“Was it a criminal [act]? Well, yes, but it was—I suppose, in a technical sense, it was criminal, but set against the larger crime that is being committed by the state. When you have a system by which criminals are in power…criminals who carry out targeted assassinations, criminals who lie to the American public to prosecute preemptive war, which under international law is illegal, if you are a strict legalist, as apparently Professor Stone is, what you’re in essence doing is protecting criminal activity. I would argue that in large sections of our government it’s the criminals who are in power.”—Chris Hedges

To watch the Hedges-Stone debate on the Democracy Now website, with access to the full transcript, click on the following link title. Alternatively, watch a 28-minute embedded video below followed by a greatly abridged transcript with added subheadings and text highlighting.

We host a debate on Edward Snowden. Is he a hero or a criminal, whistleblower or a traitor? Here in New York, we’re joined by Chris Hedges, senior fellow at The Nation Institute; was a foreign correspondent for The New York Times for 15 years, was part of a team of reporters that was awarded the Pulitzer Prize in 2002 for the paper’s coverage of global terrorism.

And in Chicago, Illinois, we’re joined by Geoffrey Stone, a professor at the University of Chicago Law School. His recent piece for The Huffington Post is called “Edward Snowden: ‘Hero or Traitor’?” Stone served as an informal adviser to President Obama in 2008.

Chris Hedges, Geoffrey Stone, we welcome you both to Democracy Now! Professor Stone, I want to begin with you. In your piece, you say that Edward Snowden’s actions were criminal. Can you explain why you feel he should be in jail?

From a legal standpoint, there’s no question that Snowdon violated the law and deserves punishment

GEOFFREY STONE: Well, there is a federal statute that makes it a crime for public employees who have been granted access to classified information to reveal that information to persons who are unauthorized to receive it. So, from a simple, straightforward, technical legal standpoint, there’s absolutely no question that Snowden violated the law. And from that standpoint, if he’s tried, he will be convicted, and he is in fact, from that perspective, a criminal. Whether one admires what he did is another question, but it doesn’t have anything to do with whether or not what he did was unlawful.

The question, why I think he deserves punishment, is—he said it actually himself in the clip that you played earlier: He said, “I’m just an ordinary guy.” Well, the fact is, he’s just an ordinary guy with absolutely no expertise in public policy, in the law, in national security. He’s a techie. He made the decision on his own, without any authorization, without any approval by the American people, to reveal classified information about which he had absolutely no expertise in terms of the danger to the nation, the value of the information to national security. That was a completely irresponsible and dangerous thing to do. Whether we think it was a positive thing in the long run or not is a separate question, but it was clearly criminal.

The real debate is about whether we’re going to have a free press — Snowden reached out to the press to expose fraud, crimes, and unconstitutional activity

CHRIS HEDGES: Well, what we’re really having a debate about is whether or not we’re going to have a free press left or not. If there are no Snowdens, if there are no Mannings, if there are no Assanges, there will be no free press. And if the press—and let’s not forget that Snowden gave this to The Guardian. This was filtered through a press organization in a classic sort of way whistleblowers provide public information about unconstitutional, criminal activity by their government to the public. So the notion that he’s just some individual standing up and releasing stuff over the Internet is false.

But more importantly, what he has exposed essentially shows that anybody who reaches out to the press to expose fraud, crimes, unconstitutional activity, which this clearly appears to be, can be traced and shut down. And that’s what’s so frightening. So, we are at a situation now, and I speak as a former investigative reporter for The New York Times, by which any investigation into the inner workings of government has become impossible. That’s the real debate.

By calling what Snowden did a “criminal act”, Professor Stone is protecting criminal activity in large sections of our government

CHRIS HEDGES: Well, if—that is what an act of conscience is. And reporters live—our sort of daily fare is built, investigative reporters, off of people who, within systems of power, have a conscience to expose activities by the power elite which are criminal in origin or unconstitutional. And that’s precisely what he did. And he did it in the traditional way, which was going to a journalist, Glenn Greenwald and The Guardian, and having it vetted by that publication before it was put out to the public. Was it a criminal [act]? Well, yes, but it was—I suppose, in a technical sense, it was criminal, but set against the larger crime that is being committed by the state. When you have a system by which criminals are in power, criminals on Wall Street who are able to carry out massive fraud with no kinds of repercussions or serious regulation or investigation, criminals who torture in our black sites, criminals who carry out targeted assassinations, criminals who lie to the American public to prosecute preemptive war, which under international law is illegal, if you are a strict legalist, as apparently Professor Stone is, what you’re in essence doing is protecting criminal activity. I would argue that in large sections of our government it’s the criminals who are in power.

Whether Mr Hedges likes it or not, these government surveillance programs are not unconstitutional or illegal

GEOFFREY STONE: Well, first of all, there is, so far as I can tell from everything that’s been revealed, absolutely nothing illegal or criminal about these programs. They may be terrible public policy—I’m not sure I approve of it at all—but the fact is the claim that they’re unconstitutional and illegal is wildly premature. Certainly from the standpoint of what’s been released so far, whether Mr. Hedges likes it or not, or whether Mr. Snowdon likes it or not, these are not unconstitutional or illegal programs.

I agree there should be statutes to prohibit gathering of metadata by government or private contractors

GEOFFREY STONE: I do believe that it’s [gathering metadata] problematic, and I think, in fact, there should be statutes that prohibit the gathering of this type of data by private entities, as well as by the government, in the absence of at least a compelling justification. And I thought the Supreme Court’s decisions initially on this question were wrong. So I would certainly want to see them differently. But in terms of what the law is, it’s not unconstitutional, it’s not illegal, and it’s completely different from what [wiretapping] the Bush administration was doing.

I think it’s great that the ACLU has issued a lawsuit to stop collection of domestic phone logs

GEOFFREY STONE: I think it’s great. I think that they are perfectly right to bring the question. That’s their job. Their job is to challenge whether or not things are constitutional, to raise those questions. That’s exactly what they should be doing. Doesn’t mean they’re always right, but they should be presenting these questions to the courts. That’s their job. That’s their responsibility.

Unfortunately the press and legal profession have collapsed under a corporate coup d’état – so the debate is really about what mechanism we have to examine the inner working of power

CHRIS HEDGES: Well, we used to have a mechanism. It was called the press. And we used to be able to tell our sources that they would be protected and that they would not be investigated for providing information that exposed the inner workings of power. Unfortunately, the press, like most institutions in this country, and I would add the legal profession, has largely collapsed under this corporate coup d’état that’s taken place and is no longer functioning. And I want to get back, that what this is fundamentally a debate about is whether we are going to have, through the press, an independent institution within this country that can examine the inner workings of power or not. And it is now—I mean, many of us had suspected this widespread surveillance, but now that it’s confirmed, we’re seeing—you know, why did Snowden come out publicly? Well, because I think he knew that they would find out anyway, because they have all of Glenn Greenwald’s email, phone records and everything else, and they can very quickly find out who he was speaking to and whether Snowden had contact with him. And that—you know, I speak as reporter—is terrifying, because it essentially shuts down any ability to counter the official propaganda and the official narrative and expose the crimes. And we have seen in the last few years tremendous crimes being committed by those in power. We have no ability now to investigate them.

Republican Congressmember Peter King is wrong to say action should be taken against reporters/publishers for disclosing leaked information.

GEOFFREY STONE: He’s just wrong. The Supreme Court, in the Pentagon Papers case, for example, made very clear that although Daniel Ellsberg could be prosecuted for – as a public official stealing information — that The New York Times and The Washington Post could not be restrained from publishing that information. The court has essentially held that although the government can control classified information at its source by prohibiting employees from revealing it, once the information goes out, it cannot then punish the press for publishing it. It’s a little bit odd as a system. But the idea is that, on the one hand, we have freedom of the press, which has to be preserved; on the other hand, the government has a legitimate interest in maintaining confidentiality at the source within the government itself. So, no, clearly, Greenwald and Reuters and so on, none of those can be — The Guardian, none of those can be punished, consistent with the First Amendment. That’s clear.

Snowden’s position is much worse than Ellsberg’s because it’s about an ongoing NSA program

GEOFFREY STONE: So, I think Snowden’s position, based upon what I know now, is much worse. Ellsberg revealed historical information that had really no appreciable threat to the national security. It was all old information about what the government had done in the past. And what Snowden has revealed is information about ongoing programs, which, we’re told, are extremely important to the national security, and we’re told that the revelation of those programs makes them far less efficient. That’s a very serious—potentially very serious harm to the nation. That was not the case in Ellsberg’s situation.

So, I think that those two situations are not remotely comparable, in terms of the harm that Ellsberg did to the country, which I think was trivial, relative to what Snowden has done, which arguably is far more serious.

As well as protecting our civil liberties, government has a responsibility to protect against terrorism

GEOFFREY STONE: Let me make another point about civil liberties here, by the way, that it’s extremely important to understand that if you want to protect civil liberties in this country, you not only have to protect civil liberties, you also have to protect against terrorism, because what will destroy civil liberties in this country more effectively than anything else is another 9/11 attack. And if the government is not careful about that, and if we have more attacks like that, you can be sure that the kind of things the government is doing now are going to be regarded as small potatoes compared to what would happen in the future. So it’s very complicated, asking what’s the best way to protect civil liberties in the United States.

The suggestion that what Snowden or Manning did harmed national security is a ploy government is using to accrue more power

CHRIS HEDGES: I just don’t buy this argument that, you know, this hurts national security. I covered al-Qaeda for The New York Times, and, believe me, they know they’re being monitored. The whole idea that somehow it comes as a great surprise to jihadist groups that their emails, websites and phone calls are being tracked is absurd. This is—we’re talking about the wholesale collection of information on virtually most of the American public, and the consequences of that are truly terrifying. At that point, we are in essence snuffing out the capacity of any kind of investigation into the inner workings of power. And to throw out this notion that it harmed—this harmed national security, there’s no evidence for that, in the same way that there is no evidence that the information that Bradley Manning leaked in any way harmed national security. It didn’t. What the security and surveillance state is doing is playing on fear and using that fear to accrue to themselves tremendous forms of power that in a civil society, in a democracy, they should never have. And that’s the battle that’s underway right now, and, frankly, we’re losing.

Martin Luther King violated an unjust racial segregation law and cannot be compared with what Snowden did

GEOFFREY STONE: Obviously, King is right. The question is whether it’s an unjust law. So, people who violate a law because they think it is unjust don’t necessarily fit within the letter from the Birmingham jail. King was talking about protesting racial segregation, and that’s a little bit different in terms of the moral status of it. Now, maybe it’s true. I mean, maybe Chris Hedges is right, and maybe that—that Snowden is a hero, and maybe this is all a fraud on the part of the government, this information serves no useful purpose, and it’s fundamentally important to the United States that it’s been revealed. Maybe that’s true. And if it turns out to be true, then I’ll be the first to say Snowden was a hero. But at the moment, I have absolutely no reason to believe that. And to say that some people act on legitimate conscience and therefore violate unjust laws is not to say that everyone who violates a law is Martin Luther King in the Birmingham jail.

Snowden has no legal arguments in his defence against the charge that he violated the law

GEOFFREY STONE: Legally, I don’t think he has—honestly, I don’t think he has any legal arguments that would be a defense to the charge that he violated the law about government contractors not disclosing classified information to persons who are not authorized to receive it. I don’t think he has a defense. Some people commit a crime, and they committed the crime. And I don’t know that there’s any defense sometimes.

Charges against Ellsberg were dropped because his Constitutional rights were violated by the Nixon administration

GEOFFREY STONE: Well, he [Ellsgerg] wasn’t exonerated. In his case, the judge dropped the charges against him because the Nixon administration searched his psychiatrist’s office in violation of the Constitution, and the judge concluded that that was prosecutorial misconduct, and therefore dismissed the prosecution. If the government does something similar in Snowden’s case and the court finds that it’s a violation of his constitutional rights in the course of the investigation and dismisses the charges, that would be something, as his lawyer, I’d certainly want to know. But on the merits of the charge as they presently—as it presently stands, I think it’s a sentencing question, not a criminality question.

I think Professor Stone is engaging in character assassination against Snowden

CHRIS HEDGES: Well, without figures like Snowden, without figures like Manning, without figures like Julian Assange, essentially, the blinds are drawn. We have no window into what’s being done in our name, including the crimes that are being done in our name. Again, I—you know, having worked as an investigative reporter, the lifeblood of my work were figures like these, who had the moral courage to stand up and name the crimes that they witnessed. And these people are always, at the moment that they stand up—and even King, of course, was persecuted and reviled and denounced, hounded by J. Edgar Hoover, who attempted, through blackmail, to get him to commit suicide before accepting the Nobel Prize. Let’s not forget that all of these figures, like Snowden, come under this character assassination, which, frankly, I think Professor Stone is engaging in. And that’s not uncommon. That’s what comes with the territory when you carry out an act of conscience. It’s a very lonely and frightening—and it makes these figures, like Snowden, deeply courageous, because, I mean, the whole debate—traitor or whistleblower—for me, you know, hearing this on the press is watching the press commit collective suicide, because without those figures, there is no press.

Government has to be constantly re-examining itself to avoid all the temptations in the wrong direction

GEOFFREY STONE: I think there needs to be a really careful re-evaluation of the classification system. I—there’s no question that we wildly overclassify, and that creates all sorts of problems, both for the press and for the ability of the government to keep secrets, because if you try to keep everything secret, you don’t effectively keep very much secret. So I think that’s critical. I think there is a serious question about how we make the trade-off between security and privacy, and I think that that’s an issue that needs to be addressed carefully. Certainly, within the administration and within the government, to the extent there are genuinely secret policies that need to be kept secret, and I believe that perfectly possible, then I think that does not immunize them from serious debate by responsible people within the four corners of the administration, bringing in people who can have national security clearances to take the devil’s advocate position and challenge these issues. So I think there’s a lot that can and should be done, and I think that it’s easy to get swept up in the notion of security being the be all and end all. This is a nation that’s committed to individual privacy, to freedom of the press, to freedom of speech, and those values need to be respected. And I think government constantly has to be re-examining itself, because all the temptations are in the wrong direction.

The Obama administration has been overly concerned with secrecy and not sufficiently transparent

GEOFFREY STONE: Well, I think the comment was correct then, and I think it’s correct today. I think that there’s a temptation on the part of public officials to basically say, “We don’t [want] to be hassled, we don’t want to be bothered, we don’t want to be criticized, so we’ll just do what’s in the best interest of the country, and we don’t have to tell anybody about it.” And that’s a huge danger in a democracy. And—but the fact that I accept that and passionately believe it does not mean that everything the government does in confidence and in secret should not be in confidence or in secret. The problem is where to draw the line.

So, yes, I would criticize the Obama administration, in general, for being overly concerned with secrecy and not being sufficiently transparent. The point I made earlier about overclassification is a good example. But at the same time, I do recognize that there are situations in which secrecy is critical, and the problem is being able to discern when that’s necessary and when it’s not. And to do that, you need to have people within the debate who are internally challenging the necessity for secrecy and confidentiality. I don’t think the Obama administration has done a very good job of that.

If we don’t wrest back the capacity to investigate what our power elite is doing, we can essentially say our democracy has been snuffed out.

CHRIS HEDGES: Well, we’re talking about the death of a free press, the death of a civil society. This is far beyond a reasonable debate. We make the East German Stasi state look like the Boy Scouts. And if we don’t wrest back this power for privacy, for the capacity to investigate what our power elite is doing, I think we can essentially say our democracy has been snuffed out.

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